Mediation Tips

a. Bringing the right people to the table. Counsel frequently overlook an
essential ingredient for a successful mediation -- bringing the right people
to the table. This has two aspects. First, for mediation to succeed, those
present at the session should have actual settlement authority. It is
therefore important to determine that all necessary parties, insurance
carriers and behind-the scenes decision makers whose consent or
authorization will be necessary to achieve a full settlement of the case are
in attendance or are available through authorized representatives.

Secondly, bringing the
right people to the table includes consideration that those representatives
with greater objectivity are more likely to be open to broader perspectives,
and more creative at finding solutions. Accordingly, it is helpful to
include in each side's negotiating team at least one member who is perceived
by the other side as having objectivity. .

In a
commercial or corporate setting, certain enlightened companies recognize the
value of including persons who were not personally involved in the origins
of the conflict on their negotiating teams. The reasoning is people can more
effectively represent the organization if they are freed from the burden of
having to justify or defend their own past actions.

The
mediator's and parties' orientations also may affect who attends the
mediation. If a narrow or compromise orientation is taken, the focus of the
mediation will be on the interaction of decision makers and the presence of
additional participants may be a hindrance. Alternatively, if a broad
orientation is adopted with an aim to improving relationships and full
resolution between and among all parties, the number of participants is
likely to expand in order to include input from all those whose interests
may be affected by the outcome of the mediation.

In
practice, it is generally useful to discuss in advance who the opposing
sides intend to bring and seek agreement from counsel that actual
decision-makers (those with authority to bind) will attend.Cooperative problem solving by creating a think-tank atmosphere is
conducive to achieving resolution at the highest level.

b. The importance of
confidentiality in mediation. In order to foster the type of productive
discussion that leads to settlement, it is absolutely essential for the
parties to understand that all communications they wish to keep private in
caucus will remain confidential unless disclosure is authorized. This is
particularly important when the parties discuss settlement numbers in the
private sessions with the mediator.

When an issue or item of
information is raised in the private meeting that the party or attorney
wishes to be kept confidential, he or she should immediately flag the item
and inform the mediator that this information is confidential and should not
be disclosed. At the conclusion of each confidential meeting, it is useful
for the participants and the mediator to review what information can and
cannot be disclosed.